THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS
Decision DEC - E2011-244
PARTIES
Ramune Jurgutiene, Dainius Vaitkevicius, Arvydas Gecas, Ricardas Jurgutis
(Represented by Richard Grogan & Associates, Solicitors)
v
JSD(NI) Ltd
(Represented by Aine Grogan, BL instructed by Moran & Ryan, Solicitors )
File references: EE/2009/499, EE2009/500, EE2009/501,
EE2009/503, EE2009/695, EE2009/696, EE2009/697, EE2009/698
Date of issue: 19 December 2011
Headnotes: Employment Equality Acts, 1998-2008 - sections 6, 8,14A,74 - race- - conditions of employment - prima facie case - discriminatory dismissal - harassment -victimisation..
1. Dispute
1.1 This dispute concerns claims by Mr. Ricardas Jurgutis, Mr. Dainius Vaitkevicius, Mr Arvydas Gecas, and Ms Ramune Jurgutiene (hereafter "the complainants") that each of them was subjected to discriminatory treatment on the ground of his/her race in terms of Section 6 (2) (h) of the Act and contrary to Sections 8 of the Employment Equality Acts by JSD (NI) Ltd (hereinafter "the respondent"). This disputes also concerns a claim by Ms Ramune Jurgutiene that she was subjected to discriminatory treatment on grounds of gender and marital status in terms of Sections 6(2)(a) and (b) of the Act. Each of the complainants maintain that the respondent discriminated against him/her in relation to training and conditions of employment. Each of them also maintain that s/he was discriminatorily dismissed harassed and victimised.
1.2 Each of the complainants referred complaints under the Employment Equality Acts to the Equality Tribunal on 23 July 2009 and subsequently on 14 September 2009 each of them referred claims of victimisation. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Deirdre Sweeney, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 29 June 2011, the date the complaint was delegated to me. Submissions were received on behalf of all parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 27 July, and 6 October 2011.
2. Summary of the Complainants' Submissions
2.1 The complainants who are Lithuanian nationals, state they were employed by the respondent. Each of them submits that s/he did not receive a contract of employment, health and safety documentation or training. Each of them complains that s/he did not receive tax documentation, that s/he was dismissed and received no P45. Each of them contends that as a result of issuing proceedings the respondent through their solicitor issued threats. The complainants also contend that they were each subject to social abuse that all Lithuanians were lazy and cheated the Government. They also contend that the respondent required the employees pay €3000 expenses in order to continue to work. The complainants contend that this constitutes unlawful discrimination on grounds of race contrary to the Acts.
2.2 The complainant also referred to a number of cases in support of his case, including Southern Health Board -v- Dr Teresa Mitchell, Campbell Catering Ltd -v- Rasaq (EED048), 58 Complainants -v- Goode Concrete (DEC-E2008-020), Khumalo -v- Cleary & Doyle Limited (DEC-E2008-003), Golovan -v- Porturlin Shellfish Limited (DEC-E2008-032), Ning Ning Zhang -v- Towner Trading t/a Spar Drimnagh (DEC-E2008-001) and Wolf Gang Lang- & Georg Schunemann Gmbh.
3. Summary of the Respondent's Submission
3.1 The respondent states that it is a clothing collection company which collects clothes on contract for several charitable organisations. The complainant (Ms Ramune Jurgutiene) commenced her employment in the Republic of Ireland on 1 September 2008. The complainant's duties included organising the day to day operations of the business including the delivery of bag tags to private houses and assisting with the collection of the tags and/or bags of clothing from these houses at a later date. These bags were then delivered by the complainant and other members of staff using company vans to the respondent's warehouse in Navan Co. Meath. At all times during the complainant's employment the employees whom she hires were directly answerable to her. The complainant spoke Lithuanian and had a high standard of English. She shared accommodation with two other of the complainants, Mr Ricardas Jurgutis, her husband and Mr Arvydas Gecas. Owing to the complainant's proficiency in both Lithuanian and English, the complainant acted as an intermediary between the respondent and the employees whom she hired. The employees were, at all times, aware that this was the complainant's position with the respondent company. At not stage during the complainant's service with the respondent did she raise any issues on behalf of herself or the employees whom she had hired regarding the terms and or nature of their employment.
3.2 The complainants, Mr Arvydas Gecas and Mr Ricardas Jurgutis commenced employment with the respondent on 1 September, 2008. The complainant Mr. Dainius Vaitkevicius commenced his employment with the respondent on 12 January 2009. The duties of each of these complainants included delivering tags to private houses and assisting with the collection of the tags and/or bags of clothing from these houses at a later date which were then delivered using company vans to the respondent's warehouse in Navan, Co. Meath. At all times during these complainants' employments the complainants were answerable to their manager, Ms Jurgutiene. Ms Jurgutiene spoke Lithuanian, the complainants' own language and had a high standard of working English. In addition she shared accommodation with two of these complainants. At no stage during the complainants' service with the respondent were any issues referred to it by Ms Jurgutiene regarding the complainants being unhappy with the terms and/or nature of their employment.
3.3 The respondent states that on 18 June 2009 Mr A, of the respondent company visited the warehouse in Navan, Co. Meath. The warehouse on this date was nearing capacity. Mr A returned on 23 June 2009 to discover that the warehouse had been emptied of its contents. He immediately telephoned Ms Jurgutiene to enquire as to the whereabouts of the stock and she informed him that she would not reveal its location and stated that she would not be returning to work for the respondent. The call was then discontinued and Mr. A attempted to contact Ms Jurgutiene numerous times over the course of the day. Ms Jurgutiene then arrived at the warehouse at 3pm with a number of individuals, including the other complainants, who were in the employment of the respondent. She told Mr A that she had sold the stock but would not state to whom and refused to elaborate on the issue any further. A number of other Lithuanian nationals then arrived to collect the individuals who were already on the premises and they left the warehouse shortly afterwards. Mr A subsequently reported the matter to the Gardai. The respondent submits that any claim brought by the complainant suggesting that reporting this incident to the Gardai amounts to victimisation of the complainants by the respondent has no substance and is brought in bad faith.
3.4 On foot of the incident on 23 June 2009 and having been unable to contact any of the complainants Mr A wrote to each of them on 1 July 2009 asking each to clarify his/her intentions regarding his/her employment. Mr A received no response to any of these letters and having been unable to contact them by any other means the respondent issued each of the complainants with his/her P45. Their P60's had already been issued at the appropriate time while they were in the employment of the respondent. Any allegation that the manner in which any or all of the complainants' cessation of employment was discriminatory is denied.
3.5 In relation to all of these claims the respondent submits that the complainants have failed to overcome the burden of proof. In relation to the claim that the respondent failed to provide the complainants with contracts of employment the respondent accepts that none of the complainants received copies of their terms of employment in breach of the Terms of Employment (Information) Act 1994. The respondent submits that this issue has been determined by a Rights Commissioner decision dated 3 March 2010. The respondent submits that responsibility for enforcement of rights under the above statute rests with the Rights Commissioner and it is the responsibility of this Director of the Equality Tribunal to determine solely whether the provision of the terms of employment was discriminatory. The respondent submits that, as there was no practice within the company to provide employees with contracts of employment, the complainants cannot claim that they were discriminated against on the basis of race. It is the respondent's contention that none of the complainants were treated less favourably on account of race in relation to the provision of contracts, health and safety documentation or training. The respondent contends that at no time during their employment did the complainants raise any issues either directly or through Ms Jurgutiene regarding employment rights. The respondent rejects the claims that the complainant did not receive their P45 upon cessation of employment. The respondent provided copies of the complainants' P45 and P60 sent to the addresses supplied by them. The respondent contends that their P60's were provided to them at the appropriate time while in the employment of the respondent.
3.6 In response to the complainants' claims that the manner in which they were dismissed was discriminatory the respondent contends that the complainants effectively deserted his/her employment with the respondent and as such the respondent did not dismiss any of the complainants rather he/she chose to leave of their own accord. Despite the respondent making every effort to contact each of the complainants he/she did not return to work nor provide any explanation to the respondent for his absence. In a final effort to bring clarity to the situation the respondent contacted each of the complainants by letter dated 1 July 2009 asking him/her to explain his/her intentions regarding his employment. In circumstances where a complainants fails to return to work and/or failed to contact the respondent at any stage regarding his/her employment it is submitted that it was entirely reasonable for the respondent to form the view that each of the complainants had unilaterally discontinued employment. It was for this reason and no other that the complainants' employment with the respondent came to an end and had a hypothetical Irish employee deserted their employment in a similar way he/she would not be afforded more favourable treatment.
3.7 In relation to the claim that the complainants were subjected to social abuse the respondent submits that the complainants have failed to provide any evidence of the alleged comments which were allegedly made. In addition the complainants failed to make any complaint of this nature to the respondent and or any of its agents during their employment. The majority of the respondent's employees are of Lithuanian origin. Furthermore the respondent appointed Ms Ramune Jurgutiene, a Lithuanian national, to a position of trust and responsibility within the organisation; an appointment which is totally at odds with the allegation that the respondent verbally or otherwise abused the complainants on account of their nationality.
3.8 The respondent submits that it continued to employ Lithuanians and this is also a policy totally at odds with the allegations of abuse. The complainants also failed to provide any proof of the allegation that the respondent imposed levies on them in order to secure employment. The respondent rejects this claim in its entirety. In response to the complainants' claims that he/she has been victimised by virtue of these proceedings in that the respondent made allegations of theft against one of the complainants, namely Ms Jurgutiene, the respondent submits that on foot of Ms Jurgutiene informing the respondent that she had removed the stock and sold it to an unknown individual, the respondent was entitled to made a complaint to the Gardai regarding the removal of his stock. The respondent submits that any decision to do so was formed entirely separately and independently from the institution of these proceedings. The decision to make a complaint to the Gardai was made in good faith and at no stage was there any intention or attempt to prevent the complainants from bringing these proceedings.
3.9 The respondent's position is that subsequent to the incident which occurred in June 2009 it afforded every opportunity to each of the complainants to explain his/her situation and clarify whether he/she wished to return to employment. In light of the fact that each of the complainants failed to make any effort to contact the respondent to notify it of his/her intentions it is entirely unreasonable for each of them to suggest that he/she was dismissed by the respondent in a discriminatory fashion. The respondent has accepted its failings regarding the provision of certain documentation, however it submits that these deficiencies in its organisation have been dealt with by the Rights Commissioner and it has been penalised accordingly. The respondent refutes all allegations in relation to discrimination and reiterates the comments made that it continues to employ Lithuanian nationals and adds that it has at all times had a good working relationship with people from that country. The respondent refers the Tribunal to the provisions of Section 77A of the Employment Equality Acts and seeks to have the complainants' cases dismissed on the basis that they have been brought in bad faith, are frivolous, vexatious and misconceived.
4. Conclusions of the Equality Officer
4.1 At the outset of the hearing of these complaints, the complainants' representative withdrew all of the complaints relating to training and conditions of employment. No submission or arguments were made in relation to Ms Jurgutiene's complaints on grounds of gender and marital status and these complaints were also withdrawn. Accordingly, the only issues for decision in this case are whether or not the respondent discriminated against each of the complainants on the grounds of race in terms of section 6 of the Employment Equality Acts, 1998 to 2008 as regards discriminatory dismissal, harassment and victimisation.
4.2 Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection....."
Section 6(2) of the Acts defines the discriminatory ground of race as follows - "as between any two persons ..... that they are of different race, colour, nationality or ethnic or national origins... "It follows therefore that each of the complainants must be the subject of less favourable treatment in comparison to another person on grounds of nationality i.e. because he/she is Lithuanian.
4.3 Section 85A of the Employment Equality Acts 1998- 2007 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which he/she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required of him/her, his/her case cannot succeed.
Discriminatory Dismissal
4.4 The first issue that I must consider relates to the complainant's' claims that each of them was subjected to a discriminatory dismissal by the respondent on the grounds of his/her nationality. In considering this issue, I note that there is a serious conflict between the parties in relation to the facts of this case. In such circumstances I must decide on the balance of probabilities whose version of events is more credible. At the hearing Mr A stated that he went to the warehouse on 23 June 2009 and discovered that it had been emptied of its contents. He called Ms Jurgutiene and she told him that she had taken the stock, sold it and would not tell him where it was. He rang her several times and she told him she was on her way to the warehouse. About an hour later she with several others including the complainants arrived in company vans. He asked her where the stock was but she would not tell him. He did not ask for any money from her or any of the others with her. He wanted to know where his stock was. Other people arrived in separate cars, he assumed friends of the complainants and the complainants left with them. They left the company vans with the keys still in them at the warehouse and he rang other workers to come and collect them and bring them to another site for safety reasons. He was concerned about leaving them unattended at the warehouse.
4.5 The evidence of each of the complainants was taken separately although I did have to remind Mr. Jurgutis that he could not interfere with a witness giving evidence when he appeared to be prompting Mr Gecas when he was giving evidence. The interpreter present was not in a position to hear and interpret what had been said. In her evidence, Ms Jurgutiene said it was not true that she took the stock from the warehouse. She did not know who had taken it. She contended that Mr.A asked her to call everyone together for a meeting. There were about 10 -15 people there. She was adamant that Mr. A did not mention anything about missing stock. She contended that he asked for money in advance from them to cover the costs of the tags and bags they used for collection. When they refused this he told them collectively to go and told her that she was not needed in his company anymore. She stated that the other complainants understood English quite well enough to understand what was being said. They called friends who collected them. She received a letter from the respondent enquiring about her intentions regarding her employment but she had started legal proceedings then and on legal advice did not respond to the letter.
4.6 Mr Vaitkevicius stated that he had very little English and that Ms Jurgutiene who was his boss translated for him during the course of his employment. Ms Jurgutiene told him that he had to go to a meeting with the respondent on 23 June 2009. At the meeting Ms Jurgutiene translated what Mr A said to them at the meeting. She told him that Mr A was looking for money from them so that they could continue working. She told him that he said he did not need them anymore. He understood some things that Mr A said at the meeting. The complainant stated that Mr. A mentioned the missing goods from the stores and asked for money to cover the missing stores. He stated that he subsequently received a letter from the respondent dated 1 July 2009 about his intentions regarding his employment but he had started legal proceedings then and on legal advice did not respond to the letter.
4.7 Mr Jurgutiene stated that Mr A called his wife on 23 June 2009 and told her that he wanted all of them to come to a meeting. At this meeting Mr A asked them if they had money to pay upfront for bags and tags, he was seeking €3000 from each of them. He had mentioned this about two weeks before to his wife and him. Mr. Jurgutiene stated that Mr. A did not mention any missing stock. The complainant stated that although he spoke little English, he did understand a lot of it. He denied that his wife had admitted taking stock and questioned how she could as she did not know anyone to sell to. In cross-examination the complainant stated that he did not know whether it was true that his wife's brother had purchased stock previously from the respondent. He alleged that at the meeting Mr. A had told them that he did not need them any more. He accepted that he subsequently received a letter from the respondent dated 1 July 2009 about his intentions regarding his employment but he had started legal proceedings then and on legal advice did not respond to the letter.
4.8 Mr. Gecas stated that he had little English and that Ms Jurgutiene his manager, translated for him. He stated that Ms Jurgutiene told him to go to a meeting at the warehouse and he went there with friends. Ms Jurgutiene told him it was necessary for him to go to the meeting but she did not know the purpose of it. Mr. Gecas stated that at the meeting Mr A said that he did not need them anymore. Mr Gecas stated he could not remember whether there was any mention of missing stock. He could not remember such a conversation. He accepted that he subsequently received a letter from the respondent dated 1 July 2009 about his intentions regarding his employment but he had started legal proceedings then and on legal advice did not respond to the letter.
4.9 In a recent Determination the Labour Court , whilst examining the circumstances in which the probative burden of proof operates held as follows
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.. "
4.10 In the instant case, I have found the respondent's evidence in relation to the issues raised at the meeting on 23 June 2009 to be more credible and I am not satisfied that the complainants have adduced any evidence from which I could reasonably conclude that each or any them were dismissed by the respondent at the meeting on 23 June 2009. In this regard I note that the respondent wrote to each them on 1 July 2009 in relation to his/her employment and asking if he/she intended to return to work. None of the complainants replied to this letter. I note that the complainants were in contact with an Irish solicitor then and all of them stated that they were in receipt of legal advice at that time. I am satisfied that they have failed to establish facts from which it may be presumed that he/she was dismissed by the respondent on 23 June 2009 or treated less favourably by the respondent on grounds of race or nationality. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory dismissal on grounds of race contrary to the Acts.
Harassment
4.11 Each of the complainants claim that he/she was subjected to harassment by the respondent on the grounds of race contrary to the Acts. "Harassment" is defined in Section 14A(7)(a) of the Acts as "any form of conduct related to any of the discriminatory grounds being conduct which ... has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". Section 14A(7)(b) further states that "such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material". Ms Jurgutiene gave evidence that in the course of a conversation about her work in early June 2009 Mr A shouted at her told her she was a bad manager and that Lithuanians were lazy people. Mr Ricardas Jurgutiene, her husband, in his evidence stated that he was with his wife when Mr A shouted at her and told her Lithuanians were lazy people. He said this had occurred on a number of occasions. He stated that while he could not speak English he understood what was being said. Mr A denied that he made any comments in relation to Lithuanian people or to laziness. He accepted that he had spoken to Ms Jurgutiene in early June 2009 in relation to his concerns that the quality of clothes being collected was disimproving but he had made no comments in relation to her nationality. He outlined the friendly relationship that both he and his wife had with Ms Jurgutiene and her husband and how they socialised together . Ms Jurgutiene accepted in her evidence that this had been the situation. Mr Jurgutis stated in his evidence, that this had been the situation but relations between them had changed some months before. Mr A stated that when he first knew Ms Jurgutiene she was working on her own and he bought clothes from her. She said that she wanted to buy a house and needed to show a regular salary in order to get a loan. He employed her on 1 September 2008 and she recruited the other complainants whom he also employed. He stated that he now believes that Ms. Jurgutiene continued to run her own business alongside his and was paying cash to the other complainants for work done on her behalf. Ms Jurgutiene denied this.
4.12 Having regard to the evidence available to me I am not satisfied that Ms Jurgutiene has adduced any evidence from which I could reasonably conclude that discussions she had with Mr. A in relation to concerns about the quality of clothes being collected was in any way attributable to her nationality. Accordingly, I find that the complainant has failed to establish a prima facie case of harassment on the grounds of her race. As each of the other complainants state that they understood from Ms Jurgetiene that Mr. A said that all Lithuanians were lazy and as I am not satisfied that any evidence has been adduced to support this allegation I find that each of the complainants has failed to establish a prima facie case of harassment on the grounds of race.
Victimisation
4.13 In Tom Barrett v Department of Defence the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that
(i) the complainant must have take action of a type referred to at paragraphs (a)-(g) of section 74(2) - what it terms a protected act,
(ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
The complainants allege that as a result of issuing proceedings under the Employment Equality Acts their legal representative received a letter from the respondent's then legal representative containing threats to go to an Garda Siochana about the matter. The complainants had referred claims dated 21 July 2009 under the Employment Equality Acts to the Tribunal on 23 July 2009 and EE2 forms dated 21 July 2009 issued from them to the respondent. The respondent submitted in evidence a statement Mr A made to an Garda Siochana regarding the alleged theft of stock from the warehouse in Navan. This statement was dated 9 June 2009. An additional statement was submitted in evidence, signed by the member of the Garda Siochana who had taken the statement, stating that he, the Garda, had entered the date in error and the correct date of taking the statement is 9 July 2009. The respondent's contacts with the Gardai predate any action of any type taken by the complainants in terms of Section 74 (2) of the Employment Equality. The complainants have provided no evidence in support of their claims of victimisation.
5. DECISION OF THE EQUALITY OFFICER
5.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision.
(i) ) the respondent did not discriminate against each of the complainants on the race ground pursuant to section 6(2)(h) of the Acts, in respect of discriminatory dismissal contrary to section 8(6) of the Acts
(ii) the respondent did not harass or victimise each of the complainants on the race ground in terms of the Acts.
_____________________
Deirdre Sweeney
Equality Officer
19 December 2011